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Minors Health Care: The Basics of Consent, Privacy and More
October 29, 2014
CHA Webinar
Welcome
Liz MekjavichCalifornia Hospital Association
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Continuing Education Offered for this Program
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Compliance — The Compliance Certification Board (CCB) has approved this event for up to 2.4 CCB CEs. Health Care Executives — CHA is authorized to award 2 hours of preapproved ACHE Qualified Education Credit (non-ACHE) for this program toward the advancement or recertification in the American College of Healthcare Executives.Health Information — This program has been approved for 2 continuing education unit(s) for use in fulfilling the continuing education requirements of the American Health Information Management Association (AHIMA). Legal — This activity has been approved for 2 hours of MCLE credit. Nursing — Provider approved by the California Board of Registered Nursing for 2.4 Contact Hours.Social Work — Course meets the qualifications for 2 hours of continuing education credit for MFTs and/or LCSWs from the California Board of Behavioral Sciences.
Continuing Education Requirements
Full attendance, completion of online survey, and attestation of attendance is required to receive CEs for this webinar. CEs are complimentary for registrant. If additional participants under the same registration would like to be awarded CEs, a fee of $20 per person, will apply. Post-event survey will be sent to registrant and provide information on how to apply online for additional CEs.
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Faculty: Jacquelyn Garman, Esq.
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Jacquelyn Garman, JD, is vice president, legal counsel for California Hospital Association. Ms. Garman oversees and coordinates the association’s legal representation on litigation critical to the hospital industry and assists with the legal impact of legislation and regulations on hospitals. Prior to joining CHA, Ms. Garman served as general counsel for Children’s Hospital & Research Center Oakland (now UCSF Benioff Children’s Hospital Oakland) from 2006-2014, where her responsibilities also included serving as the organization’s risk manager. In addition, she was a partner in the Hanson Bridgett law firm, specializing in civil litigation with an emphasis in medical staff credentialing and peer review disputes.
Consent for Minors
Jacquelyn Garman, Esq.
California Hospital Association
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Overview
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General rules
Consent when parents are unavailable
When parents refuse treatment for a minor
When parents disagree about care
Who besides parents can consent for a minor?
When can a minor consent?
“Sensitive services”
Wards and dependents of Juvenile Court
When parent(s) and minor disagree
Basic Principles of Consent
Every competent adult has a fundamental right of self-determination that includes the right to consent, or refuse to consent, to medical treatment
Others (not competent/not adult) must ordinarily have their treatment decisions made by a person legally authorized to act on their behalf who will protect their interests and preserve their basic rights
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Basic Principles (cont.)
Minors must ordinarily have a responsible adult, acting in the minor’s best interest, make health care decisions for them
But California law specifically grants to minors the right to make certain health care decisions for themselves
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“Simple” vs. “Informed” Consent
All medical treatment procedures require consent
No consent = battery
“Simple consent” may be given for hospitalization, routine services (blood tests, X-rays), simple and common procedures with remote risks
Commonly provided through Conditions of Admission (COA)
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“Simple” vs. “Informed” Consent
If the treatment/procedure is involved or complicated, physician must obtain “informed consent,” advising patient of:
Nature of the procedure
Risks, complications, and expected benefits or effects of procedure
Any alternatives to the treatment and their risks and benefits
Any potentially conflicting interest(s) the physician may have (research, financial)
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“Simple” vs. “Informed” Consent
• Case law, The Joint Commission (TJC), CMS, all address the required elements for informed consent
• Medical staff must determine which procedures require informed consent
• Documentation of process is required
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“Simple” vs. “Informed” Consent
The patient’s consent must be meaningful (adequate explanation of risks and benefits; alternatives to proposed treatment/procedure and their risks and benefits)
Exception to consent requirement for emergency treatment: consent is implied
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Helicopter Parent?
14-year-old patient admitted for chronic medical issue — repeat patient
Mother is concerned that her child is developing drug addiction
Mother wants to oversee dispensing of pain medication to child and wants to be called at home every time medical team is considering giving pain meds so she can approve or disapprove? What do you do?
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How Long is Consent Valid?
No expiration date — common sense and situation should be analyzed
Consent effective until:
Revoked by patient or legal representative or
Circumstances change so as to materially affect the nature of, or the risks of, the procedure or the alternatives to the procedure
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Consent by Telephone
Case-by-case evaluation of appropriateness of obtaining consent by telephone: only if the person(s) having the legal ability to consent for patient not otherwise available
The more complicated the medical treatment, the less likely it is appropriate to consent by phone
Telephone call should be witnessed by two hospital employees and documentation should so note
Remember e-mail and fax as a bridge to document telephone consent
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Refusal of Treatment
Parents have the right to refuse treatment, but must be advised of possible risks and complications (informed refusal)
May not impose their beliefs re: blood transfusion — court orders
When is refusal of treatment abuse?
Generally, the parents must act in patient’s best interest, but both the physician and the parents think they are acting in best interest
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Refusal of Treatment
Strategies to gain agreement
Discuss best interest analysis and long term nature of decisions
Consider ethics consult and meeting with parents to resolve anxiety about provider’s motives
Offer a second opinion
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Other Considerations
A physician may elect to not treat a person as the patient’s personal representative if the physician has a reasonable belief that:
The patient has been subjected to domestic violence, abuse or neglect by that person, or
Treating that person as the personal representative could endanger the patient, and
In the exercise of professional judgment, the physician decides it is not in the patient’s best interest to treat the person as the patient’s personal representative(45 C.F.R Section 164.502 (g)(5))
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Refusal to Vaccinate
Parents firmly believe that children have been over-vaccinated and they decline vaccination. What do you do?
Attempt to educate on risks (informed refusal) – use federal Vaccine Information Statements
CHA form 5-1: Refusal to Permit Medical Treatment
American Academy of Pediatrics has a form specific to vaccination: http://www2.aap.org/immunization/pediatricians/pdf/RefusaltoVaccinate.pdf
NOTE: AB 2109 (effective 1-1-14) makes refusal more difficult: more rigorous requirements for parent/guardian to claim “personal belief” exemption from school vaccination requirements
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Refusal to Consent to Mandated Testing
There are several tests hospitals must offer to parents:
Preventable heritable or congenital disorders
Rhesus
Newborn and infant hearing
Eye treatment
Immune globulin
If parents refuse, see CHA manual for forms to document refusal
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Consent for Minors:Yours, Mine and Ours —What Are the Rules?
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Minors and their Decision-Making Adults
Minor = person under the age of 18
Parents have a legal obligation to provide the necessities of life for their minor children, including health care (Penal Code section 270)
The rights of minors have been expanded over the years — in California this has occurred through legislation and court interpretation
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Minors and their Adults (cont.)
Some states have adopted the “mature minor” doctrine:
Minor at the age (usually 14) to appreciate risks and benefits
Minor evidences actual understanding
Treatment will benefit the minor
California has not adopted this doctrine, but has used it as a rationale to legislate minors’ rights in some areas
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Minors and their Adults (cont.)
Married parents
Divorced parents
Stepparents
Registered domestic partner parents
Non-biological parents
Multiple parents
Guardians
Third parties
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Minors with Married Parents
If no evidence of disagreement between parents, either parent has the legal authority to consent
However, if there is disagreement, treatment should not be provided until the conflict is resolved
What if harm to patient will result?
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Minors with Divorced Parents
If both agree: no problem
If disagreement: who has the legal right to decide?
Parent with “sole legal custody” has the right to consent to medical treatment (Family Code section 3006 and 6903)
• Sole legal custody is the exception; joint legal custody is most common
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Minors with Divorced Parents
If parents share legal custody (joint legal custody): either parent can consent unless court order provides otherwise
Physical custody is irrelevant in determining whether a parent has the right to make health care decisions
That the minor lives with one parent does not mean that the non-custodial parent cannot consent
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Minors with Divorced Parents
Focus on the LEGAL rights of the parents —get a copy of the relevant court order(s)
Court orders may be modified or superseded, so give the other parent the opportunity to present more current order
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Minors with Divorced Parents
What if divorced parents with joint legal custody disagree?
Educate, mediate, negotiate
Communicate equally with both parents
Avoid becoming a “pawn” for one parent to “win”
Danger of becoming an advocate for one parent or the other
If all else fails, court orders or CPS30
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Minors with Divorced Parents
Tips for avoiding the problem in the first place
For elective treatment, determine in advance if parents are in general agreement before agreeing to the physician-patient relationship
If you have notice of parental break-up, request that decision-making regarding minor’s medical needs be clearly and specifically addressed in legal documents —focus on child
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Stepparents
Can a stepparent give consent for a minor?
A stepparent does not have the authority to give legal consent to medical treatment for a minor stepchild unless the stepparent:
Has legally adopted the child, or
Has written authorization from the natural parent, or
Provides a valid Caregiver’s Authorization Affidavit
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Adopted Minors
Adoptive parents have the same right to consent as birth parents (Family Code section 8616)
After adoption, birth parents have no rights or responsibilities for the child and thus have no role in the consent process
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Adoption Pending
If rights not yet formally relinquished, obtain a “continuing consent” from birth parents
Use “Health Facility Minor Release Report”: birth parent gives the prospective adoptive parent the right to make health care decision pending finalization of adoption
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Minors Born out of Wedlock
Mother has legal authority to consent
Father also has legal authority to consent, but if there is reason to doubt his status as biological father, request court order establishing parental right
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Registered Domestic Partners (RDP)
RDPs have the same rights as married spouses
But an RDP has no right to make health care decisions for the child of their partner unless:
The RDP has adopted the child,
The RDP provides a signed third-party authorization from a parent of the child, or
The RDP provides a Caregiver’s Authorization affidavit
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Non-Biological Parents
This area is evolving. Two California cases demonstrate this:
Elisa B. v Sup Ct.: Former partner of biological parent held to have obligation to support child
K.M. v E.G.: Woman ovum donor who helped raise children has parental rights post-separation
Solution: Parental Agreements or Adoption37
Minors Who are Parents: Hypothetical
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Minors Who are Parents: Hypothetical
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Minors Who are Parents
The law regarding the need for parental consent to treat minors makes no distinction based on the age of the parent (Family Code § 7600 et seq.)
Even though a minor parent CANNOT make health care decisions for herself, she can make them for her child, so long as:
The minor parent demonstrates the ability to give informed consent (understand nature of treatment, any alternatives, and the risks and benefits of both the treatment and alternatives)
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Minors Who are Parents
17-year-old mother has newborn with complicated medical issues
Mother does not want to consent to her baby being trached because she does not like how it will look later. What do you do?
Further discussions with mother?
Engage (with mother’s consent) another adult in the discussion?
Ethics consult on Mother’s capacity?
Discussion of CPS?
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Does a Minor Parent have Capacity to Make Medical Decisions for Her Child?
Start with the presumption of capacity
Physical and mental disorders alone are not a sufficient basis for finding lack of capacity
Explain risks, benefits and alternatives in terms the minor can understand
May require more than one attempt
Believing that the minor is making an unwise or “wrong” medical decision is not a basis for concluding lack of capacity
Look at the situation
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Minors Who are Parents
Pregnant 16-year-old arrives for delivery of baby
Due to condition of fetus, C-section recommended
16-year-old will not consent, wants to wait for her mother to get to the hospital
What do you do?
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Minors Who are Parents
If provider believes minor lacks capacity, suggest that the minor involve the grandparent — have grandparent sign Conditions of Admission for consent and financial responsibility
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Guardians
“Guardian” = person formally appointed by a court
The rights of guardians are determined by the court, so always obtain the certified letters of guardianship to determine the scope of guardian’s authority
Absent court order otherwise, guardian may consent to non-surgical medical treatment for minor. (Probate Code section 2353(a))
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Guardians — Surgical Treatment
Absent court order otherwise, guardian may consent to surgical treatment for minor under 14 years of age
For a minor 14 years of age or older, surgery requires:
Consent of both the guardian and minor, or
A court order obtained by the guardian, or
Guardian determines, based on medical advice, that the case involves an emergency: minor faces loss of life or serious bodily injury
• Probate Code section 2353 (b), (c)
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Guardian Consent — Limitations
Guardians cannot consent to:
Experimental drugs
Convulsive treatment
Sterilization
Psychosurgery
Placing minor in mental health treatment facility placement unless application is made under Welfare and Institution Code, in which case the treatment is considered voluntary and minor is so advised
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Caregiver Authorization Affidavit — Signed by Caregiver
A nonparent adult relative with whom a minor lives may complete a “Caregiver Authorization Affidavit” to give consent for minor’s care
Caregiver has the same rights to authorize medical care as does a guardian
Same limits on right to consent to surgery for minor 14 or older
Cannot consent to experimental drugs, convulsive treatment, sterilization, psychosurgery, or involuntary placement in in mental health treatment facility
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Requirements for Valid Caregiver’s Authorization
Adult must be “qualified relative”
Spouse, parent, stepparent, brother, sister, stepbrother/sister, stepsister, half-brother/sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by prefix “grand” or “great,” or the spouse of any of the persons specified, even after the marriage has been terminated by death or dissolution
• Broad category; membership survives death or dissolution
• Includes blood relatives as well as relatives by marriage; also “greats” and “grands”
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Requirements for Valid Caregiver’s Authorization (cont.)
Minor must be “living with” that adult
Not defined, but presumably does not include temporary visit
Adult must:
Advise the parent(s) of the proposed medical treatment and have received no objection or
Be unable to contact the parents
Adult must complete “Caregiver’s Authorization Affidavit attesting that all of these elements are true and correct (CHA Form 2-2 or equivalent)
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Caregiver’s Authorization Affidavit
No criminal or civil liability or professional discipline for treating minor in reliance on signed, completed affidavit
Providers have no obligation to make further inquiry or investigation into facts stated
But can’t ignore inconsistent evidence they do have
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Third-Party Consent —Signed by Authorized Adult
A parent, guardian or caregiver (adult entitled to consent for the minor) may authorize an adult into whose care a minor has been entrusted to consent to medical or dental care, except:
If minor is 14 or older — then guardian limitations apply (Family Code section 6901)
See CHA form 2-3: “Authorization for Third Party to Consent to Treatment of Minor Lacking Capacity to Consent”
Allows hospital to release child to the third party
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Authorization Form
Use of CHA form is optimal but not required
Form completion does not need to be witnessed by hospital staff
Does not need to be dated
Specific name of third party not necessary —title is sufficient (“Athletic Coach”)
Recommend trying to reach parent(s)/caregiver, but not required
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Jail Time
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Jail Time
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Foster Care
Unless otherwise specified, parents do not lose right to consent because their child has been placed in foster care. Exceptions:
Court has the right to remove parents’ rights to consent once minor is a dependent of the court
Additional people can be authorized to consent
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Foster Parents
So if child is in foster care, determine whether or not parental rights have been terminated
Can foster parents consent to minor’s care?
If child has been placed on a temporary basis before a detention hearing has been held: NO
If child has been placed per court order or with voluntary consent of the person(s) having legal custody of the minor: Foster parents can consent to “ordinary” medical and dental treatment
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Minors Whose Parents are Unavailable
If the minor is 16 years or older, but consent by his parent is required:
Minor may petition the court for order allowing the treatment (Family Code section 6911)
If minor has been abandoned, involve juvenile court
Abandoned newborns under “safe surrender” may be treated without parental consent
Health & Safety Code section 1255.7
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Suspected Child Abuse
Health care providers have the right to examine and x-ray minors without the consent of the parent when child abuse is suspected
X-rays only for purpose of diagnosing possible child abuse/neglect and its extent
Provider does not have to prove that abuse has occurred
Immunity applies
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If the Minor Wants to Refuse Treatment
Case-by-case analysis — assess the minor’s capacity
Discuss care with minor
Mediate with family using social work, spiritual services
Consider ethics consult
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Minors in Custody/Juvenile System
If a minor is taken into custody, the State must provide for health care needs — Court may issue orders for care
As a general rule, the same consent rules will apply, however:
A court may remove the parents’ right to consent
A court may grant other people the right to make decisions without taking away parents’ rights
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Minors in Custody/Juvenile System (cont.)
For minors in temporary custody, Social
Worker/Probation officer:
May consent, but must inform parents, and if objection, must get court order
Emergency care: may consent, but make reasonable efforts to contact parents and obtain consent — if no consent, treatment may be given without court order
Court authorization may be given to make decisions with notice to parents
Some courts issue “standing orders” specifying scope of their consent
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Emergency
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Emergency
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When Minors Can Consent Based on Age or Status
Handy Chart
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Minors’ Rights to Consent for Themselves
Authorization for particular classes of minors to consent to own care:
Because of their quasi-adult status (emancipated, self-sufficient, on active military duty, married/previously married)
Because of the type of treatment they are seeking (“sensitive services”: pregnancy or contraceptive care, communicable reportable disease, rape or sexual assault treatment)
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Minors of a Certain Age
Magic Numbers:
Any age: reproductive health services
Age 12+: outpatient mental health, communicable reportable diseases, HIV testing, drug and alcohol
Emancipated or self sufficient at age 15+: all care
Age 16+: may apply for court order
Note: Providers may consider actual capacity of patient
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General Rule on Financial Responsibility
If the minor may legally consent to care, the parents are not financially responsible for the service (W & I Code section 14010)
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Emancipated Minors
A minor is emancipated if:
The minor is or has been validly married
Is on active duty in U.S. military
Or has received a “declaration of emancipation” by a court(Family Code section 7002)
Parenthood is NOT an emancipating event!
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Emancipation Declarations
Minor 14+ years may petition the court for emancipation
DMV will issue an ID card reflecting emancipated status
Emancipated minors may consent to treatment without parental consent, knowledge, or liability
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Emancipated Minors
But parents may have financial responsibility for services for which the emancipated minor consents if the emancipated minor lives with them —basically, all health care except for that listed on the following slide(W & I code section 14010)
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Under Family Code, Parents Free of Financial Responsibility for:
Outpatient mental health care (Fam. 6924/H&S 124260)
Prevention or treatment of pregnancy (Fam. 6925)
STD prevention (HPV vaccine) (Fam. 6926)
Diagnosis, treatment of reportable communicable disease (Fam. 6926)
Care related to rape (Fam. 6927)
Care related to sexual assault (Fam. 6928)
Alcohol and drug abuse treatment (Fam. 6929) 73
Minors Living Separate and Apart from Parents
A minor may be deemed “self-sufficient” and able to consent for own health care if:
Age 15+
Minor is living separate and apart from parents, regardless of their consent or the duration of the separation
Minor is managing his or her own financial affairs(Family Code section 6922) Source of income irrelevant
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Self-Sufficient —How to Verify?
The law does not provide rules on how, or if, a health care provider must, verify the minor’s claim of self-sufficiency
Look at ID and make good faith effort
Have them fill out the Self-Sufficient Minor form (CHA Form 2-1)
In the absence of evidence to the contrary, you may rely on form
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Minors on Active Duty
Minors on active duty in the U.S. military are emancipated and can consent to all care
Obtain a copy of their military ID card
No responsibility to inform parents, and parents are not financially responsible
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Married or Previously Married Minors
Minor who has entered into a valid marriage, even if later terminated, is emancipated and can consent to own care
California does not recognize “common law” marriage
No responsibility to inform parents, and parents are not financially responsible
Advisable to get a copy of the marriage certificate, but not required
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When Minors Can Consent Based on the Type of Treatment
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Pregnancy or Contraception
Minor may consent to all types of care in this category, regardless of age. Treatment includes:
Contraceptive care, including emergency
Abortion
Pelvic exams
Pregnancy testing
Prenatal care
Does not include sterilization79
No Parental Notification for Abortion
Minors have a constitutional right to consent to abortion
In the 1980s, a statute was passed that would have required parental notification: Supreme Court struck down that law
No mandatory waiting period for abortion in California
Use good judgment (as with any patient) as to minor’s capacity to consent
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Communicable Diseases
Threshold age for consent is 12 years
May consent to care related to diagnosis or treatment of a communicable, reportable disease or to prevention of an STD
Diseases include those that must be reported to the State (See chapter 20 of Consent Manual)
Includes HIV testing and HPV vaccine
Minor may consent for all necessary treatment
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Rape or Sexual Assault Victims
Minor 12+ can consent to all necessary treatment, including emergency contraception, related to rape
Minor of any age may consent to all treatment related to sexual assault (so that would cover rape?)
Minor may also consent to the collection of evidence by police
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Drug/Alcohol Treatment
Minor 12+ may consent to medical care and counseling related to a drug/alcohol problem (Family Code section 6929)
However, minor may not consent to replacement narcotic abuse treatment (Methadone, etc.)
State law also allows a parent or guardian to consent to care for these conditions if the minor does not consent
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Drug/Alcohol Treatment
Parents will not be financially liable unless they participate in counseling
Parents must be given the opportunity to participate in counseling unless provider does not think it is appropriate
Parents can’t veto minor’s treatment
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Minors Consenting to Mental Health Services
Minor 12+ may consent to mental health treatment or counseling services on an outpatient basis if, in opinion of the attending professional, minor is sufficiently mature to participate intelligently
Additional requirement for minor’s consent to residential shelter services: minor must present a danger of serious physical or mental harm to self or others without the residential shelter services
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Minors and Mental Health Consent (cont.)
Parents must be given the opportunity to participate in counseling unless provider does not think it is appropriate
Provider must consult with minor before concluding that it is inappropriate to give parents the opportunity to participate
Document in the record whether and when provider attempted to contact parents and whether they were contacted or the reasons why it wouldn’t be appropriate to contact them
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Minors and Mental Health Consent (cont.)
Parents can’t veto minor’s treatment
Because a minor has a privacy right in health information resulting from services to which the minor is authorized to consent, minor controls disclosure of information resulting from mental health treatment even if parent(s) consented to, or even arranged for, such treatment, and even if the parents are paying for it
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Minor Mental Health Payment
Existing law: provides the parents are not liable for payment (and should not be billed) if the minor consented to the services
Medi-Cal has a “minor consent” or “sensitive services” program, that enrolls minors for benefits without income qualification or parental notification for services: (includes: pregnancy, family planning, abortion, sexual assault, sexually transmitted diseases, mental health outpatient treatment (some limits) and substance abuse treatment)
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Minors and Mental Health Consent (cont.)
Minors cannot consent to any of the following:
Inpatient mental health
Psychotropic drugs
Convulsive therapy
Psychosurgery
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Minor Mental Health Payment
Medi-Cal program will not cover care provided when minors consent for outpatient mental health care unless the minor required counseling because he/she was danger to self or others, or victim of alleged incest or abuse
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Thank You
Jacquelyn Garman, Esq.
(916) 552-7636
jgarman@calhospital.org
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Faculty: Lois Richardson
Lois Richardson, Esq., is vice president of privacy and legal publications/education at the California Hospital Association (CHA). Ms. Richardson is responsible for all privacy related issues at CHA and for the development, writing and editing of CHA’s legal publications. Her noteworthy publications include the highly-regarded Consent Manual and the California Health Information Privacy Manual, which addresses both state and federal laws regarding the use and disclosure of health information. Additionally, she is the executive director for the California Society for Healthcare Attorneys.
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Privacy for Minors
Lois Richardson, Esq.
California Hospital Association
Right to Privacy
All patients have a right to privacy –
sounds simple, right?
Then why is it so complicated???
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Relevant Laws
State and federal constitutions
State and federal statutes
CMIA: Confidentiality of Medical Information Act
LPS: Lanterman-Petris-Short Act
HIV: Human Immunodeficiency Virus
PAHRA: Patient Access to Health Record Act
HIPAA: Health Insurance Portability and Accountability Act
HITECH: Health Information Technology for Economic and Clinical Health Act
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But Wait – There’s More!
State and federal regulations
Title 22
Conditions of Participation
HIPAA
Substance abuse
Subregulatory guidance
Interpretive Guidelines
Office of Civil Rights (OCR) guidances
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Your Government at Work
Key issue: balancing the patient’s right to privacy against other competing interests (facility operations, public health, research, protection of others, etc.)
Congress, the Legislature, HHS, SAMHSA have done this balancing
Different people at different times leads to
Different terminology and different exceptions
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Big Picture Structure of Privacy Laws
These laws have the same basic structure: a health care provider cannot disclose health information about a patient unless:
1. The law explicitly contains an exception that requires or allows the disclosure, or
2. The patient authorizes the disclosure
In addition, the patient/legal rep. has the right to see his/her own information
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What About Minors?
Privacy law is the same for minors as adults
Required disclosures
Permissible disclosures without patient authorization
But what if patient authorization is needed?
And what if parent/minor wants access to, or a copy of, the health information?
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Minors’ Privacy Rights
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Minors’ Privacy Rights
Who exercises the minor’s right to health information privacy?
The minor
A responsible adult on behalf of the minor (“parent” — but could be guardian, other legal rep, as Jackie has discussed)
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Good News…
Good news: you already know the basics!
General rule: Who may access minor’s information = who makes minor’s treatment decisions
Of course, every rule has some exceptions!
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More Good News…
HIPAA defers to state law to define the rights of parents and minors with respect to access/disclosure of health information
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Minors’ Privacy Rights
State law:
If the minor has the authority to consent to treatment, then the minor is the person who can see the information/records, have copies of the records, authorize the release of records to third parties
Even if, as a practical matter, the parent makes the appointment, fills out the forms, is involved in the care, pays for the care, etc.
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Minors’ Authority
Remember Jackie’s list:
Demonstrated independence — minor’s status (emancipated, married/previously married, active duty U.S. military, self-sufficient)
Type of health care minor is seeking, age
Reproductive health, sexual assault
12 y/o: outpatient mental health, reportable communicable disease, substance abuse
See handy chart: Appendix 2-B105
Appendix 2-B
106106
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Really?
So … Hepatitis, mumps, measles, tuberculosis, etc. are communicable reportable diseases. Does that mean I can’t disclose information to the parents of my 12-year-old patient with one of these diseases?
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Relax!
Both CMIA and HIPAA permit disclosure of limited information to a family member, close personal friend, or any other person identified by the patient – follow procedure (next slide)
Information is limited to the information directly relevant to such person’s involvement with the patient’s care or payment related to the patient’s care
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Relax!
If the patient is available and has decision-making capacity, the provider must:
Obtain the patient’s verbal agreement;
Provide the patient the opportunity to object to the disclosure, and the patient does not do so; or
Reasonably infer from the circumstances, based on the exercise of professional judgment, that the patient does not object to the disclosure (Under California law, this does not apply if the provider is a psychotherapist)
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Relax!
If the patient is not present, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the patient's incapacity or an emergency circumstance, the provider may, in the exercise of professional judgment, determine whether the disclosure is in the best interests of the patient and, if so, disclose only the medical information that is directly relevant to the person's involvement with the patient's health care.
Civil Code section 56.1007; 45 C.F.R. section 164.510(b)
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Minor May Designate Parent
The minor may request that the parent be treated as the minor’s personal representative to exercise the minor’s privacy rights
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Special Situations
Two types:
Parent has authority to consent to care, but not to access information
Parent does not have authority to consent to care, but does have access to (some) information
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Giving Parent Info Would Be Detrimental
Parent has the authority to consent to treatment, but the provider determines that access to info would have a detrimental effect on:
The provider’s professional relationship with the minor, or
The minor’s physical safety or psychological well-being
Don’t share info. No liability for this decision unless the provider acts in bad faith
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HIPAA
Notwithstanding state law, a provider has the ability to not treat a person as the patient’s personal representative if the provider has a reasonable belief that:
The patient has been subject to domestic violence, abuse or neglect by that person, or
Treating that person as the personal representative could endanger the patient;
AND
In the exercise of professional judgment, the provider decides it is not in the patient’s best interest to treat the person as the patient’s personal representative
[45 C.F.R section 164.502(g)(5)]
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Minor Can Consent, But Parent Entitled to Information
Self-Sufficient Minors — may inform the parent of the treatment given or needed without the minor’s consent if the minor has told the provider where the parents may be contacted
Minor Victim of Sexual Assault — provider must attempt to contact the parent, unless the provider reasonably believes the parent is the perpetrator
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Minor Can Consent, But Parent Entitled to Information
Outpatient Mental Health Patient —provider must give parent the opportunity to participate in counseling, unless provider deems this inappropriate, after consulting with the minor
Substance Abuse Patient — provider must give parent the opportunity to participate in counseling, unless provider deems this inappropriate
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Divorced Parents
Access to health information concerning a minor may not be denied to a parent solely because that parent is not the minor’s custodial parent (Family Code section 3025)
However, some other reason may apply to deny access
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Dependent Child of the Juvenile Court
Child removed from parental custody due to abuse or neglect = “dependent child of the juvenile court”
Legal counsel appointed to represent the minor in a detention hearing must be given access to medical records
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Dependent Child of the Juvenile Court
Effective Jan. 1, 2013, a psychotherapist who knows that a minor has been removed from the physical custody of parent in a dependency proceeding may not disclose any mental health information (CMIA/LPS/PAHRA) about the minor to the parent
Unless court order to the contrary
No duty to investigate — actual knowledge is required
Immunization Information
Providers may disclose immunization information and TB screening results to county databases and California Department of Public Health
Patient/parent must be given specified info prior to disclosure
Patient or parent can object; however, can still disclose
Meant to help foster kids, dependent children/wards of the juvenile court
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Child Abuse
Must report suspected child abuse/neglect — this includes releasing information without patient or parent authorization
OK to provide information to investigator after the initial report, but:
May only disclose information that is relevant to the incident of abuse/neglect
If law enforcement wants other information, they need to obtain a court order or search warrant
Immunity (also for providing access to the victim, photographing victim, providing photos with report)
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Final Thoughts
Medical records often contain “mixed” information
Billing
Breach
Common sense
OK to share with other providers for purpose of diagnosis/treatment – so if you’re not sure if a particular person can have info, offer to give to another health care provider
Beware of federal advice (HHS, OCR) – information and advice provided doesn’t factor in stricter state law, so following federal guidances may break California law!
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Resources
Consent Manual —A Reference for Consent and Related Health Care Law
Principles of Consent and Advance Directives
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Thank you
Lois Richardson, Esq.
(916) 552-7611
lrichardson@calhospital.org
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Questions
Online questions:Type your question in the Q & A box, hit enter
Phone questions:To ask a question hit 14 To remove a question hit 13
Upcoming Programs
Labor and Employment Law Seminars
November 5, Glendale; November 13, Sacramento Advanced Decision Making for EMTALA Webinar
November 14, Sacramento Behavioral Health Care Symposium
December 8 – 9, Redondo Beach Hospital Compliance Seminars
February 2015, two programs
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Thank You and Evaluation
Thank you for participating in today’s program. An online evaluation will be sent to you shortly.
For education questions, contact Liz Mekjavich at (916) 552-7500 or lmekjavich@calhospital.org.
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